Malte Ziewitz, OII – ‘order without law’

Malte Ziewitz started from the proposition that Barlow was at least partially right: there is widespread agreement that the regulatory capacity of law is seriously constrained in cyberspace. Limits of legal regulation include costly or impossible enforcement; jurisdictional problems; fast change and outdated rules; a serious knowledge gap; value clashes; and unintended consequences or regulation.

Accordingly, for Ziewitz, we should pay more attention to non-legal regulation. Law and regulation are just one mode of governance among many. Ziewitz highlights three slightly different ways of thinking about governance:

  • governance as a community effort (eg: wikipedia)
  • governance as governmentality (eg: ebay)
  • Governance as everyday practice (eg: second life)

Wikipedia provides an example of governance as a community effort. Ziewitz claims that “governance is what people naturally do when they edit the encyclopaedia”. People feel themselves as responsible members of a community. Crucially, there is a common goal and a shared ethos that facilitates people working together.

Interestingly, this type of consensual governance is very difficult – think of Froomkin's description of the IETF (PDF) and the laborious process of obtaining consensus.

eBay provides an example of 'governance as governmentality' – the subtle shaping of social norms. eBay has a huge incentive to refrain from comprehensive policing – both because it is expensive, and because it potentially increases liability. So, eBay frames itself as a community – with shared community values (like 'we believe people are basically good'). We are subtly drawn into this feeling of being part of the community, rather than 'just a guy who buys stuff' – we internalise what it means to be a responsible ebayer.

This form of governance seems to be a weak and subtle form of governance – but it turns out to be quite important. Nikolas Rose describes this as “to govern without governing society”. It is a Foucauldian form of governance that relies on creating and perpetuating shared values. It is a a non-obvious, rather subtle view on governance that is much stronger than we realise – primarily precisely because it is so subtle.

Ziewitz uses Second Life as an example of governance as everyday practice. In SL, governance is enforced through community norms – in the interactions of everyday people. From dress codes to child protection, governance is radically flattened: enforced by other participants within the course of participation. The focus here is not on governance as organisation and structure but on how governance is 'done', achieved, or accomplished in practice.

Ziewitz concludes that we need to remember that governance is more than one – more than just law and regulation. It is important to think about these alternative modes of governance because we may become more critical users of governance; can think about new approaches in public policy and game design; and can respond to frictions between modes of governance.